URGENCY REQUIRED IN CHILD ABDUCTION CASES
The English courts -- unlike the courts in many countries, including in many situations the United States -- insist that child abduction cases are resolved expeditiously. In the European Union, following the entry into force of the Brussels II bis Regulation, there is now (2007) an obligation that the entire process of child abduction cases be completed within six weeks. Indeed, the European Commission has suggested that to guarantee compliance return orders might be enforced pending appeal, see Practice Guide for the application of Council Regulation (EC) No 2201/2003.
The English Court of Appeal came down strongly on this issue in In re M (Child abduction: Delay). In its ruling dated July 31, 2007, the Court insisted that courts, judges and lawyers need to be aware of the pressing time limits in cases involving allegations of child abduction. The court of trial had to complete the process within six weeks and once a judgment had been sent to counsel in draft, there should only be a brief period in which to draft the consequential order.
For this reason, the Court of Appeal (Lord Justice Thorpe, Lord Justice Collins and Lord Justice Toulson) refused to grant permission to appeal to the father against the dismissal by Mr. Justice Sumner of his application under the Hague Convention on the Civil Aspects of International Child Abduction 1980, as scheduled to the Child Abduction and Custody Act 1985, and Council Regulation (EC) No 2201/2003 (Brussels II)(OJ 2003 L338/1).
The originating summons had been issued on April 4, 2007. The judge heard the case on May 21, 2007 and elected to put his conclusions in writing which were emailed to counsel on May 25. However, Lord Justice Thorpe said that it was quite unacceptable that the sealed order giving expression to that judgment was not dated until June 21. He insisted that to waste a whole month in the timescale of a Brussels II case was completely unacceptable, and that counsel needed to understand that once judgment was with them in draft, there should only be a brief period in which to draft the consequential order.
It is to be hoped that the lesson of this case is heeded in other jurisdictions.
TIMETABLES FOR HAGUE CONVENTION
Whilst there is no formal set timetable the listing officer ensures that Hague applications are listed for hearing very quickly and the established general rule is as follows:
• once the initial application is made, it is fixed for hearing 7 days later;
• if a defence is raised the application is listed for directions within 21 days;
• in order to accommodate this, and given the pressure on court lists, the proceedings are listed “at risk” which means that there is a possibility that on the day of hearing a Judge may not able to accommodate the hearing due to the pressure of other hearings - if this happens a further hearing is fixed for shortly thereafter.
Adjournments are limited by rules of court [Family Proceedings Rules 1991 rule 6.10] to a maximum of 21 days so that the court exercises control over the progress of a case.
Article 11(3) of the Brussels II revised regulation provides as between Member States of the European Community, that a court to which an application for return of a child is made under the Convention, the court shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law and without prejudice to this, shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.
Permission to appeal is required. The permission application should be made to the first instance Judge if possible and if not to the Court of Appeal. If permission is refused by the first instance Judge, the application can be renewed to the Court of Appeal.
Any Notice of Appeal has to be filed within 14 days of the date of the first instance decision. Convention cases are given priority. The Court of Appeal office will try to refer the application for permission to appeal either on the day of issue or within 24 hours to a Lord Justice of Appeal (generally the Head of International Family Law). The Lord Justice of Appeal will give listing directions including deciding whether the application for permission to appeal and the appeal should be heard together so that the permission stage and the substantive appeal hearing take place on the same day.
Ordinarily an appeal will be determined within 6 weeks of the grant of permission to appeal.
The final appellant stage is an appeal to the Supreme Court. This rarely occurs.
The Court of Appeal has recently given guidance as to the administrative process to be adopted by the court, in order to ensure that proceedings governed by the Convention and the Brussels II revised regulation are determined within the 6 week time limit imposed by Article 11(3) of the regulation: Vigreux v Michel and Michel EWCA Civ 630.